Chapter Two
Search and Seizure
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation and particularly
describing the place to be searched, and the persons or things to be seized.
—Fourth Amendment of the US Constitution (1791)
KEY WORDS
Terms to understand for this chapter…
• Abandonment
• Exclusionary Rule
• Expectation of Privacy
Zone
• Fruits of the Poisonous
Tree Doctrine
• Independent State
Grounds
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•
•
•
•
•
Magistrate
Open fields
Plain View Doctrine
Probable Cause
Search
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OBJECTIVES
After completing this chapter, you should be able to…
•
•
•
•
•
Discuss the purpose of the Exclusionary Rule.
Explain the Fruits of the Poisonous Tree Doctrine.
Define the protected areas and interests.
Explain the requirements for obtaining a search warrant.
Identify the restrictions on inspections and regulatory
searches.
• List the exceptions to the Fourth Amendment.
• Explain the purpose of the Fourth Amendment.
Procedures in the Justice System, Ninth Edition
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History/Purpose of the 4th Amendment
• From a criminal procedure perspective, the Fourth
and Fifth Amendments contain the most important
language in existence within the US legal structure.
• Not all searches are prohibited, only those that are
unreasonable.
• Many times students or even professionals in the field
lose sight of the rationale and reasons for the Fourth
Amendment.
• Asking the following questions in search/seizure
situations will assist in analyzing this complex area:
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History/Purpose of the 4th Amendment
Search/Seizure Questions
• Does the Fourth Amendment apply?
– if it does not apply, the question of reasonableness and
warrants and probable cause are irrelevant
• If the Fourth Amendment does apply, has it been
complied with?
• If the Fourth Amendment does apply and has not been
complied with, what sanctions will the court impose on
any evidence seized in violation of the amendment?
• Using this approach will help students to focus on the
correct issues within this area of criminal procedure.
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History/Purpose of the 4th Amendment
The twelve amendments submitted by the
U.S. Congress in 1790 to safeguard the
rights of individuals from the interference
of the federal government.
Ten of them were adopted in 1791 as the
Bill of Rights.
This document bears the signature of then
Vice President John Adams. (Source:
Getty Images Inc.Hutton Archive Photos.)
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History/Purpose of the 4th Amendment
• When the US Constitution was being drafted very little
thought was given to including a declaration of rights
for individual citizens.
– original state constitutions contained language purported
to protect individuals from undue government oppression
• The ratification process produced a movement to
include amendments in the form of a Bill of Rights.
• The Fourth Amendment was based upon a distrust of
government and a desire to prevent arbitrary actions.
– it deals with the “seizures” of both persons and property
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Exclusionary Rule
Weeks v. US
• In 1914, the US Supreme Court decided Weeks v. US,
establishing the Exclusionary Rule and its applicability
to the federal government.
– local and federal law enforcement officers seized evidence
from the home of the defendant
• The Court excluded evidence seized by the federal
officers, holding allowing it would defy prohibitions of
the Constitution intended to protect people against such
unauthorized actions.
– local police were still able to conduct searches and seizures
according to the rules established by the individual states
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Exclusionary Rule
Wolf v. Colorado
• In 1949, the Supreme Court ruled in Wolf v. Colorado,
the first time the Court considered whether the Fourth
Amendment should be imposed upon state proceedings.
– using the Fourteenth Amendment due process clause
• The Wolf Court reviewed the states’ acceptance of the
Weeks doctrine and pointed out that at the time of the
decision, thirty states rejected the concept.
• The justices held that the Fourteenth Amendment does
not forbid admission of evidence obtained in violation
of the Fourth Amendment.
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Exclusionary Rule
Mapp v. Ohio
• In Mapp v. Ohio, the Court expressly overruled Wolf.
– acknowledging Wolf was founded on factual
considerations that lacked validity in today’s society
• The Court found that in the years since its decision in
Wolf, a number of states had accepted validity of the
Exclusionary Rule.
– experience had demonstrated other options and remedies
to prevent illegal searches were worthless and futile
• In Mapp, three Cleveland police officers arrived at
Mapp’s home to search for a person who was wanted
for questioning in connection with a recent bombing.
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Exclusionary Rule
Mapp v. Ohio
• Upon arrival, the officers
demanded entry, but Miss
Mapp, after telephoning her
attorney, refused to admit
them without a search warrant. Police photo of Dolree (Dolly) Mapp.
• The officers forced a door in the (Source: AP Wide World Photos.)
house & searched, finding obscene material in a trunk.
• Mapp was charged with and convicted of possession
of obscene material.
– at trial no search warrant was produced, nor was failure
to produce one explained
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Exclusionary Rule
Mapp v. Ohio
• Overturning her conviction, the Supreme Court stated:
– Moreover, our holding… is not only the logical dictate of
prior cases but it also makes very good sense.
– There is no war between the Constitution and common sense.
Presently, a federal prosecutor may make no use of evidence
illegally seized [because of Weeks], but a State’s attorney
across the street may…
– Thus the State, by admitting evidence unlawfully seized,
serves to encourage disobedience to the Federal Constitution
which it is bound to uphold…
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Exclusionary Rule
US v. Leon
• What happens if the officers conducting the search
were acting in good faith, as in US v. Leon.
• This questioned whether the Exclusionary Rule should
be modified to allow evidence obtained by officers
acting in reasonable reliance on a search warrant.
– but ultimately found to be unsupported by probable cause
• At trial, respondents filed motions to suppress evidence
seized pursuant to a warrant and said that motions were
granted in part based on the conclusion that the warrant
was not supported by probable cause.
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Exclusionary Rule
US v. Leon
• The lower court affirmed and held that there was no
good-faith exception to the Exclusionary Rule.
• The US Supreme Court reversed this decision and held
that the Exclusionary Rule should be modified so as
not to bar evidence seized in good-faith reliance on
a search warrant subsequently held to be defective.
• The Court concluded that benefits produced by
suppressing evidence on a subsequently invalidated
warrant could not justify substantial costs of exclusion.
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Fruits of the Poisonous Tree Doctrine
• What happens if law enforcement violates the
protections offered by the Fourth Amendment?
• The most straightforward explanation is courts will not
allow evidence obtained as a result of an illegal search.
– one court stated: “The essence of a provision forbidding the
acquisition of evidence in a certain way is that not merely
evidence so acquired shall not be used before the Court,
but that it shall not be used at all.”
• The Fruits of the Poisonous Tree Doctrine applies to
searches, arrests, confessions, and other evidencegathering activities of law enforcement.
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Fruits of the Poisonous Tree Doctrine
Wong Sun v. US
• Not all evidence is barred simply because it may have
initially been gathered in violation of the Constitution.
• In Wong Sun v. US, the Court held that the issue was
whether the evidence can be admitted because it was
obtained by means sufficiently distinguishable to be
purged of the primary taint of illegality.
• Another theory used to cleanse or avoid the Fruits of
the Poisonous Tree Doctrine is the so-called Inevitable
Discovery Rule.
– which allows admission of evidence if it would have
been found and discovered legally at a later time
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Fruits of the Poisonous Tree Doctrine
US v. Patane
• The Supreme Court has been hesitant to apply the rule
to violations of the Miranda warning requirements.
• In US v. Patane, the defendant violated a restraining
order and officers were told that he, a convicted felon,
illegally possessed a pistol.
– they arrested Patane but were interrupted when they
attempted to advise him of his Miranda rights
• Asked about the gun, he revealed where it was.
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Fruits of the Poisonous Tree Doctrine
US v. Patane
• The Court noted that unlike unreasonable searches or
the Self-Incrimination Clause, there was, with respect
to mere failures to warn, nothing to deter since failure
to give the Miranda warnings neither violated the
Miranda rule or the Self-Incrimination Clause.
– there was therefore no reason to apply the Fruit of the
Poisonous Tree Doctrine
• Suppression of evidence has always been the US
Supreme Court’s last resort, not the first impulse.
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Protected Areas and Interests
• The language in the Amendment states that persons,
houses, papers, and effects shall be protected or secure
against unreasonable searches.
– does that mean that a person can carry a bomb on an
airplane without being searched?
– can a person commit a crime inside his or her home
and be secure against a search?
• The courts have established a “zone of constitutional
protection” that surrounds a person and moves with
that person wherever he or she travels.
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Expectation of Privacy Zone
Katz v. US
• In Katz v. US, the Court expanded the scope of the
Fourth Amendment by establishing an “expectation
of privacy zone” protected by the Constitution.
• In Katz, the FBI attached a listening device to a public
phone booth the defendant used for wagering calls.
• The Court held that the Fourth Amendment protects
people, not places, and test for expectation of privacy
is based on two requirements:
– a person exhibit actual or subjective expectation of privacy
– the expectation is one that society is prepared to recognize
as reasonable
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Exceptions to the Fourth Amendment
Consent
• If a party consents to a search, there are no Fourth
Amendment protections.
– whether consent is valid is a question of fact to be
determined from the totality of the circumstances
• The Supreme Court in Schneckloth v. Bustamonte held
the subject’s knowledge or a right to refuse is not a
requirement to establishing a voluntary search.
• What if an undercover officer is invited into a home
being used to distribute narcotics?
• What happens when a third party gives consent?
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Exceptions to the Fourth Amendment
Consent
• When a criminal gives consent to enter an area
normally protected by the Fourth Amendment,
knowing a result he will reveal criminal activity, such
consent is not invalid.
– merely because it was given to an undercover police officer
• The Court has adopted a common authority test for
third party consent, resting on mutual use of the
property by persons generally having joint access or
control for most purposes
– it is reasonable to recognize that any of the coinhabitants
has the right to permit the inspection
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Exceptions to the Fourth Amendment
Consent
• It is generally agreed that one spouse can give consent
to search the family residence.
• If a son or daughter is a minor, parents are presumed to
be able to consent to a search of the child’s room.
• Can a child consent to a search of the parents’ home?
– if the child is older, courts generally uphold consent on the
theory that older children acquire authority and discretion to
admit whom they want into the family house
• Property relationships raise special consent.
– an owner may not consent to a search of the renter when he
has given the renter exclusive possession of the property
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Exceptions to the Fourth Amendment
Plain View Doctrine
• The Court has established an exception to the Fourth
Amendment in the form of the Plain View Doctrine.
– authorizes seizure of illegal evidence visible if the officer’s
access to the object has a Fourth Amendment justification
• How far does the expectation of privacy extend when
dealing with the Plain View Doctrine?
• Does a defendant growing marijuana in a fenced yard
have right of privacy from a plane flying over?
– in California v. Ciraolo, the Court held the defendant
did not have any reasonable expectation of privacy
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Exceptions to the Fourth Amendment
Abandonment
• If a person abandons property, is there any continuing
expectation of privacy regarding that property?
– abandonment requires intent to give up all claim
of ownership to the item or items
• In California v. Greenwood, the Court held evidence of
narcotic use obtained from garbage bags left for pickup
by the trash collector was properly admitted.
– since the defendant had evidenced an intent to
abandon the property
• What if a person checks out of a hotel room and leaves
incriminating evidence in the room’s trash container?
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Exceptions to the Fourth Amendment
Abandonment
• If someone checks out of a hotel and leaves property
behind, there is no reasonable expectation of privacy.
– once having checked out, the person has no authority
to prevent anyone from entering that room
• Technically the manager now controls the room.
– that person can grant police access to the abandoned
room and any evidence in the trash container
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Exceptions to the Fourth Amendment
Open Fields
• In an early case dealing with seizure of evidence from
an open field, Justice Holmes pointed out Fourth
Amendment protection does not extend to open fields.
• The concept of the sanctity of a person’s home
developed during early times.
– curtilage includes the home and land immediately
surrounding it
• The Court in Oliver v. US held that open fields do not
provide the setting for those intimate activities that the
Fourth Amendment was designed to protect.
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Exceptions to the Fourth Amendment
Businesses
• Does a business owner have any protection/expectation
of privacy within a commercial establishment open to
the general public?
– the question revolves around whether or not the activity
engaged in by the police is classified as a search
• Federal rules do not recognize an expectation of
privacy in business, financial, telephone, and post
office box records.
– accordingly, no warrant is required to search these records
• Most states require a warrant or subpoena to search
the records.
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Exceptions to the Fourth Amendment
Vehicles
• There is lesser expectation of privacy when dealing
with vehicles.
• If an officer is lawfully present at the
vehicle and the observes or smells
what is inside the vehicle, or even
examines the exterior of the vehicle,
such is not considered a search
within the Fourth Amendment.
– if the officer intrudes into “protected”
places, that activity may be classified
as a search
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Police officer in civilian clothes
searches a van in Kansas City,
Missouri.
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Exceptions to the Fourth Amendment
Vehicles - New York v. Belton
• The Court addressed the scope of a search incident to a
lawful arrest in New York v. Belton.
– it held when an officer has made an arrest, he may search
the passenger compartment of that automobile including
contents of any containers found within
• Courts have relied on the fact that automobiles stopped
on highways are movable, as well as stating there
is a lesser expectation of privacy for items carried
within an automobile.
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Exceptions to the Fourth Amendment
Vehicles - Illinois v. Caballes
• In Illinois v. Caballes the Court held police may use a
drug dog outside a vehicle during a routine traffic stop.
– even when police have no grounds to suspect illegal activity
• The Court noted the use of a well-trained narcoticsdetection dog during a lawful traffic stop generally did
not implicate legitimate privacy interests.
– the dog sniff was performed on the exterior of the car
while he was lawfully seized for a traffic violation
• Any intrusion on the respondent’s privacy expectations
did not rise to the level of a constitutionally cognizable
infringement.
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Exceptions to the Fourth Amendment
Tracking of Movements - US v. Karo
• Is it a search to monitor the movements of a suspect?
– law officers may surveil/follow a suspect without
his/her knowledge/consent on public roads & property
• In US v. Karo, the Supreme Court held use of a beeper
attached to the suspect’s car was not a search.
– because it did not infringe on any privacy interest
and conveyed no protected information
• The Court did hold monitoring of a beeper in a private
residence, not open to visual surveillance, violates the
rights of those with justifiable interest in privacy of the
residence.
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Exceptions to the Fourth Amendment
Random Drug Testing
• In Board of Education of Independent School Dist. No.
92 of Pottowotomie County v. Earls, the Supreme
Court upheld a school district’s policy of requiring
random drug testing as a condition for participating in
interscholastic activities.
• The Court held the Fourth Amendment was not
violated because the school’s interest in protecting its
students’ health and safety and in deterring drug usage
served an important governmental concern.
– the Court went on to state that there was a minimal
invasion of privacy caused by the tests
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Exceptions to the Fourth Amendment
Student Searches by Educators
• In N.J. v. T. L. O., a student’s purse was searched after
she was suspected of having cigarettes.
• The principal discovered the student had the cigarettes
in her possession, and discovered evidence of
marijuana and a list of alleged users from the school.
– the State of New Jersey brought delinquency charges
• The US Supreme Court held the search did not violate
the Fourth Amendment.
– search by school officials was permissible when measures
adopted were reasonably related to the objectives of the
search and were not intrusive
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Exceptions to the Fourth Amendment
Student Searches by Educators
• The Court noted that school officials need not obtain a
warrant before searching students under their authority.
– the need of teachers & administrators for freedom to
maintain order in schools does not require strict
adherence to requirements of probable cause
• School locker searches made under the auspices of a
previously promulgated school locker search policy
have been upheld as constitutional. [Zamora v.
Pomeroy, 639 F.2d 662 (10th Cir. 1981)].
– an appellate court held school officials had authority to
conduct a warrantless search of a locker after a drug dog’s
positive response provided reasonable cause
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Exceptions to the Fourth Amendment
Highway Checkpoints
• The Fourth Amendment does not treat a motorists car
as his castle.
• Law enforcement officers do not violate the Fourth
Amendment by merely approaching an individual on
the street or in another public place, by asking if he is
willing to answer some questions, or putting questions
to him if the person is willing to listen.
• The US Supreme Court in Michigan State Police v. Sitz
held that sobriety checkpoints were reasonable.
– considering the increasing number of alcohol-related
deaths and mutilations on the nation’s roads
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Inspections and Regulatory Searches
• These administrative searches fall outside the scope of
day-to-day activities associated with law enforcement.
– outside the scope of the protection of the Fourth Amendment
and judged by a different standard
• Courts have established a reasonable legislative or
administrative standard for use in these situations.
– less than Fourth Amendment probable cause requirements
• It is a test that balances the need to search against the
invasion that the search entails.
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Inspections and Regulatory Searches
Welfare Inspection - Wyman v. James
• Courts have considered that a visit by caseworkers to
a welfare recipient’s home does not constitute a
search within the meaning of the Fourth Amendment.
• In Wyman v. James, the US Supreme Court reasoned
that a welfare recipient may be required to consent to
such visits as a condition of continued receipt of
benefits.
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Inspections and Regulatory Searches
Inspections at Fire Scenes
• Can a fire inspector or an arson inspector remain in a
building after a fire to conduct an investigation without
obtaining a search warrant?
• Clearly, fire personnel can enter a building to put out a
fire, a form of emergency that is outside the protection
of the Fourth Amendment.
• Courts have stated that inspectors or firefighters can
remain in a building once the fire is extinguished.
– if they leave and desire to reenter, they must obtain a warrant
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Inspections and Regulatory Searches
Border Searches - US v. Ramsey
• The Court held searches at the border are per se
reasonable because of the right of a sovereign nation to
protect itself by stopping and searching persons and
property entering its soil.
– searches of persons and property entering the country may
be made without obtaining a warrant or probable cause
• This is balancing national interest in preventing illegal
persons & goods from entering, against the limited
intrusion that occurs when a person crosses the border.
– authority to conduct suspicionless border inspections
includes removal & disassembly of vehicle’s fuel tank
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Inspections and Regulatory Searches
Airport Searches
• In the late 60s, the US began searches of persons on
airlines if they matched a predetermined profile.
– this was abandoned in 1973, and all persons were required
to pass through a magnetometer and have carry-on luggage
X-rayed and/or inspected
• Courts have upheld airport searches on the basis of
balancing the need for the search with its limited scope.
• Additionally, the search is limited to a certain process,
and passengers have advance notice of its existence.
– this notice allows them to avoid the search simply
by choosing not to fly
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Inspections and Regulatory Searches
Searches of Prisoners
• It has been said prisoners do not lose all of their Fourth
Amendment rights because they are incarcerated.
– however, the courts have ruled in favor of correctional
institutions in a number of situations
• A prisoner’s mail may be read; after a visit with friends
or family, prisoners may be searched; and religious
practices may be curtailed.
• The courts balance security of the institution against
the rights of the inmate.
– it is said that courts are loath to second-guess
prison administrators
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Independent State Grounds
• State constitutions may provide
greater protection to than that
provided by the US Constitution.
– occurs when the state highest court
decides an issue on independent
state grounds, as in the Sitz case
• The US Supreme Court determined
sobriety checkpoints did not violate
the Fourth Amendment
William Joseph Brennan, Jr.
(1906–1997) an Associate Justice
of the Supreme Court of the
United States from 1956 to 1990.
– state appellate court held they violated
Article I, Section 11 of the Michigan
Constitution
He was known for his outspoken
liberal views, including opposition
to the death penalty and support
for abortion rights.
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Independent State Grounds
• On appeal, the Michigan Supreme Court affirmed.
– holding the checkpoints unconstitutional under the Michigan
Constitution because there was no support in Michigan’s
constitutional history for the proposition that police were
permitted to engage in warrantless/suspicionless seizures
of automobiles in order to enforce criminal laws
• The state court also held that the Michigan Constitution
offered more protection than the US Constitution.
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Probable Cause
Two Parts to the Fourth Amendment
• In the event that a warrant is not used, the first part of
the amendment enters play and requires the people be
secure “against unreasonable searches and seizures.”
• When a warrant is used, the second part requires that
“no Warrants shall issue, but upon probable cause.”
• For a search warrant to be valid, the issuing authority
must find that there are statements or other evidence
that establishes probable cause.
– an objective test that requires facts to be such as would
warrant a belief by a reasonable person that criminal
conduct has occurred, or is about to occur
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Probable Cause
• The Supreme Court has a long
history of expressing a strong
preference for the use of
search warrants.
– warrants impose an orderly
process with an independent
review by the judiciary
– the Court gives more
deference to searches
conducted with a warrant
William H. Rehnquist was appointed to
the Supreme Court by President Nixon.
In 1986 President Ronald Reagan
elevated him to Chief Justice.
He served in that capacity until his
death in 2005.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Probable Cause
• Information from informants can complicate court
evaluations of whether or not probable cause exists.
– an informant is a person who learns of criminal conduct
by being involved in the criminal culture
– the term does not refer to a citizen who is a witness or victim
• The Court views witnesses/victims in a different light
– witnesses or victims are are reciting information
they observed regarding criminal activity
• The knowledge or veracity of witnesses or victims is
seldom questioned for purposes of probable cause.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Search With a Warrant
• Courts prefer that a law enforcement officer obtain a
search warrant, a process involving…
• A neutral and detached magistrate.
• An oath or affirmation.
• Establishment of probable cause.
• Particular description of the place to be searched.
• Particular description of the items to be seized.
• The time and manner of execution.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Search With a Warrant
Importance of a Search Warrant
• The US Supreme Court has indicated a strong
preference for obtaining a search warrant prior to
conducting a search.
– in general police must get a warrant unless they cannot
• In trial of a criminal case, searches conducted pursuant
to a valid warrant are presumed to be legal.
– the defendant has the burden of proof to establish
that the search was invalid
• In the case of search without a warrant, the search is
presumed to be invalid.
– the prosecutor has the burden to establish the search as legal
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Search With a Warrant
A Neutral and Detached Magistrate
• The Court has stated police & prosecutors cannot be
expected to remain neutral when dealing with their own
investigations.
• A neutral and detached magistrate provides a fresh,
unbiased determination regarding the sufficiency of the
evidence supporting the request for the warrant.
• The magistrate cannot receive any funds for issuing the
warrant; else he/she has financial interest in the case.
– nor can the magistrate be involved in the execution
of the warrant
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Search With a Warrant
An Oath or Affirmation
• Typically, warrants require a written record under an
oath or affirmation.
• Courts are reluctant to allow other information brought
in at a later date to rehabilitate a defective warrant.
• This rule should be distinguished from the oral or the
telephonic issuance of warrants now common.
• Whether the information is presented in writing or
over the telephone, it must be attested to by an oath
or affirmation.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Search With a Warrant
Establishment of Probable Cause
• What happens if the facts supporting probable cause
are false?
• In Franks v. Delaware, the Court allowed a defendant
to present evidence to show information in the search
warrant was false.
– and therefore that no probable cause had been established
• The Court stated that banning such a process would
destroy the probable cause requirement in a warrant.
– because an officer could lie about the facts and there would
be no way or method to counter such false allegations
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Search With a Warrant
Description of the Place to Be Searched
• The warrant does not have to describe every detail
of the place to be searched.
– in urban areas, for single-family residences, the street
address is usually sufficient
– warrants must be more specific when dealing with
multiple-family apartments
• As a practical matter, many jurisdictions require
officers describe the place to be searched to avoid
mistakes.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Search With a Warrant
Description of Items to Be Seized
• The leading case in this area is Marron v. US.
– Marron required that any item seized be particularly
described in the warrant
• In Coolidge v. New Hampshire, this concept was
broadened to allow officers to seize evidence not
described in the warrant.
– if it was in plain view and of an incriminating nature
• Coolidge does not allow officers to go on a fishing
expedition searching for evidence.
– if they are conducting a search of a premise and observe
other incriminating items, they may lawfully seize those items
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Search With a Warrant
Time and Manner of Execution
• Some jurisdictions allow warrants to be executed only
within a limited number of days after issuance.
• Approximately half of states require warrants be
executed only during the daylight hours.
– unless the officers can show some special need to serve the
warrant at other times, such as during the evening hours
• An individual’s detention in handcuffs during the
search of a particular residence was permissible.
– where a warrant existed to search, the individual was an
occupant, and the use of handcuffs minimized inherent
risk in searching a gang house for dangerous weapons
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
Important topics for this chapter…
• Not all searches are prohibited; only those that are
unreasonable.
• The Fourth Amendment deals with the seizures of both
persons and property.
• The US Supreme Court imposed the Exclusionary Rule
on the states in the case of Mapp v. Ohio.
• The Fruit of the Poisonous Tree Doctrine prevents the
use of evidence tainted by illegal law enforcement
activities.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
(cont.)
Important topics for this chapter…
• The Fourth Amendment protects only persons, houses,
papers, and effects.
• A search is a governmental intrusion into an area where
a person has a reasonable expectation of privacy.
• Exceptions to the Fourth Amendment include consent,
the Plain View Doctrine, and open fields.
• A person has no reasonable expectation of privacy in
property that the person has abandoned.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
(cont.)
Important topics for this chapter…
• There is a lesser expectation of privacy when dealing
with vehicles.
• There is a lesser standard of probable cause for
inspections and regulatory searches.
• The Supreme Court has upheld the use of sobriety
checkpoints.
• The federal government does not recognize an
expectation of privacy in business, financial,
telephone, and post office box records.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
(cont.)
Important topics for this chapter…
• There are two parts to the Fourth Amendment; the
Warrant Clause and the Probable Cause Clause.
• State constitutions and statutes may provide greater
protections to an individual than are provided by
federal law.
• Only a neutral and detached magistrate may issue a
valid search warrant.
• The general rule is that to conduct a search, you must
get a warrant unless you cannot.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
(cont.)
SUMMARY
Important topics for this chapter…
• A general search warrant is illegal.
• The search warrant must specifically describe the
place to be searched and the items to be seized.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Chapter End